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Fam v. Bank of America NA (USA)

United States District Court, District of Columbia

February 22, 2017

MARK FAM, Plaintiff,
v.
BANK OF AMERICA NA (USA) et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge.

         Plaintiff Mark Fam, who is proceeding pro se, brings this action against his loan servicers Bank of America, N.A. (“BANA”) and Green Tree Servicing LLC, now known as Ditech Financial LLC (“Ditech”). First Am. Compl. (“FAC”) at 1, ECF No. 18. The plaintiff asserts claims for violations of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1634 et seq., and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., as well as for breach of contract, common law fraud, and breach of the implied covenant of good faith and fair dealing. These violations all stem from the plaintiff's March 2012 mortgage refinancing. Id. ¶¶ 143-73. Pending before the Court are Ditech and BANA's respective Motions to Dismiss, see Mot. Dismiss by Ditech Financial LLC, Green Tree Servicing LLC (“Ditech MTD”), ECF No. 19; Mot. Dismiss by Bank of America NA (USA) (“BANA MTD”), ECF No. 25, and the plaintiff's motion for default judgment as to BANA, see Pl.'s Mot. Default Judgment as to Bank of America (“Pl.'s Mot. Default Judgment”), ECF No. 26. Defendants move to dismiss the complaint primarily for improper venue as well as for failure to state a claim upon which relief may be granted, pursuant to Rules 12(b)(3) and 12(b)(6) respectively, of the Federal Rules of Civil Procedure. For the reasons set forth below, the plaintiff's case is transferred to the Eastern District of Virginia.

         I. BACKGROUND

         The plaintiff, a resident of the Commonwealth of Virginia, refinanced his home with BANA in March 2012, sought a forbearance in April 2013, and was purportedly granted a six-month forbearance in May 2013, with the possibility of an additional six-month extension. See FAC ¶¶ 1, 4, 18, 24-29, 53. The plaintiff claims that in October 2013, he requested the second six-month forbearance period. Id. ¶ 57. Nonetheless, in November 2013, servicing of the loan was transferred to Ditech, which did not honor or consider the additional six-month forbearance. See Id. ¶¶ 69-70, 100. Instead, Ditech immediately attempted to collect arrearages on the loan and, beginning in 2014, sought to foreclose the plaintiff's home of thirty years. Id. ¶¶ 102-06. The plaintiff also alleges that in August 2014, he “[e]ffected a [r]escission of the March 18, 2012 mortgage loan by sending a Notice of Rescission” to both BANA and Ditech. Id. ¶ 5; see also Id. ¶¶ 15, 106, 109, 113. The details relevant to the pending motions are discussed below.

         A. The Mortgage Refinance

         The plaintiff resides in Alexandria, Virginia and, on March 18, 2012, closed a home refinance loan for his property with BANA. Id. ¶ 1. The settlement took place in Virginia at a BANA branch with which the plaintiff was not familiar, though he notes that the loan closer “was sent from an office in Washington, D.C.” and had “first suggested meeting at an office in Washington D.C.” Id. The loan closer encouraged the plaintiff, who was not represented by counsel, to sign the documents quickly. Id. Although the plaintiff was shown disclosure notices, he was not given any notices to keep, as the loan closer left the room “to make copies” and never returned. Id. ¶¶ 1-2. Eventually, bank employees asked the plaintiff to leave the branch, and told the plaintiff to contact the loan closer in order to obtain copies of the documents he signed, suggesting the plaintiff would receive the copies in the mail. Id. ¶¶ 2-3. The following day, the plaintiff contacted the branch manager for the location where he signed the new mortgage loan in hopes of contacting the loan closer. Id. The manager told the plaintiff, “I've not seen him before, ” and the plaintiff was at a loss for how to find the person who had taken the only copy of his signed mortgage loan documents. Id. ¶ 3. The plaintiff was never given any copies of the forms that he saw during the loan closing. Id. ¶ 4.

         B. The Forbearance Agreement Promised by BANA, Followed by the Alexandria City Police SWAT Team

         In April 2013, just over a year after refinancing his mortgage, the plaintiff placed a series of calls to BANA to “inquire about possible mortgage relief assistance options.” Id. ¶ 17. During the first three calls, the plaintiff was given a variety of reasons why he was not eligible for assistance, including the date of origination for the loan, that he was not behind on his mortgage payment, and that his health concerns were not “cancer.” Id. ¶¶ 17-19. The plaintiff “made a series of verbal and written complaints to the senior executives and to the Board of Director[s].” Id. ¶ 22. At all times, the plaintiff was current on his mortgage, though he did leave his job during this time period due to medical issues. Id. ¶¶ 20, 22.

         The plaintiff subsequently discovered that the Federal National Mortgage Association, commonly known as “Fannie Mae, ” “had some stake in the home loan” and began lobbying Fannie Mae “by telephone, emails, and by U.S. mail and by in-person visits to [Fannie Mae] headquarters in” the District of Columbia. Id. ¶ 23. On May 7, 2013, a Fannie Mae senior manager informed the plaintiff that several relief assistance programs were available to him and that her office had instructed BANA to contact the plaintiff about those options. Id. ¶¶ 23-24. Later that same day, Daniel Whitehead, “a Vice President-Unit Manager in . . . [BANA's] Default Servicing Complaint Resolution Department” contacted the plaintiff and offered: “A) one-year forbearance, with no payments; divided into two ‘six-month segments[, ]', and, B) no escrow, no tax capture or insurance payment, and C) no adverse notations in [BANA] records, and D) no negative credit reporting to any consumer reporting agency, and, E) no late fees would be charged to the [plaintiff's] account for the duration of the Special Forbearance.” Id. ¶ 24. Whitehead added “that the arrearage created by the one-year forbearance would be ‘put on the back end of the loan.'” Id. The plaintiff requested a chance to “think about the offer overnight and said he would call Whitehead the next day.” Id.

         The next day, May 8, 2013, Whitehead told the plaintiff that he “had full authority to produce and secure the forbearance agreement and that . . . all the [plaintiff] had to do was notify [Whitehead] that [the plaintiff] needed the second half of the forbearance.” Id. ¶ 27. The plaintiff agreed to all of the terms except that he requested to pay some amount each month of the forbearance. Id. ¶ 29. The parties agreed that the plaintiff would pay $425 on the 15th of each month during the forbearance. Id.

         When the plaintiff received the Special Forbearance Agreement (“SFA”) via email on May 17, 2013 and FedEx on May 18, 2013, however, the documents were dated May 10, 2013, “two days after the [plaintiff] and Whitehead entered into a verbal agreement on the terms and conditions of the SFA, ” and required that the first payment under the agreement be paid by May 15, 2013. Id. ¶¶ 30-31. The plaintiff “rushed to a BANA branch and forced them to accept” payment, but the account was marked late and late fees were charged. Id. ¶ 32 (footnote omitted). On May 25, 2013, the plaintiff received another letter from BANA, requiring payment by May 15, 2013, and indicating that the SFA may be cancelled in the event of late payment. Id. ¶ 33. The June 2013 statement included a late fee for the May payment. Id. ¶¶ 34, 38. After receiving the June statement, the plaintiff attempted to contact Whitehead multiple times regarding the late fees. Id. ¶ 38. The plaintiff states that each payment was made on time at a BANA branch, but negative reports were given to the three credit bureaus. Id. ¶¶ 34-35.

         On June 19, 2013, the plaintiff received an email from Whitehead, which stated that following successful completion of the SFA, “the late charges will be waived from the account prior to the reinstatement of the loan through either the creation of a repayment plan, modification, or full reinstatement.” Id. (italics omitted).

         Notwithstanding Whitehead's assurances, shortly after receiving the June statement, the plaintiff received a letter that the “entire SFA was in complete default.” Id. ¶ 41. The next day, the plaintiff received a Notice of Intent to Accelerate, which was dated June 26, 2013. Id. ¶ 42. That notice required two full monthly payments plus late fees by August 5, 2013, in order to cure the debt, “otherwise BANA would commence foreclosure proceedings.” Id. ¶ 42. After speaking with Whitehead about the Notice of Intent to Accelerate, Whitehead sent the plaintiff an email stating, “I have reinstated the Special Forbearance and will continue to monitor the account weekly going forward.” Id. ¶ 44.

         On July 3, 2013, in a conversation with Whitehead, the plaintiff stated: “You are driving me insane, I can hardly breathe any longer, I kept my end of the bargain.” Id. ¶ 47. Shortly thereafter, the Alexandria City Police SWAT team arrived at the plaintiff's house, consisting of “a half a dozen officers, multiple vehicles, in front of the [plaintiff's] home.” Id. ¶¶ 48-49. When the plaintiff inquired as to why the police had arrived, the police informed him that, “[y]our bank called us from California.” Id. ¶ 48. The plaintiff states that “it was later determined after examination of records that Whitehead had reported the Plaintiff as some ‘sort of danger.'” Id. Following this, the plaintiff went to the Alexandria Police headquarters and “discovered that there was now a permanent ‘Police Record' associated with his property and that information would appear on any police system that searched the [plaintiffs] address, ” which the plaintiff believes could impact his future employment opportunities. Id. ¶ 51.

         On October 15, 2013, Whitehead called the plaintiff to remind him that the first segment of the SFA was almost up and ask if he needed the second segment. Id. ¶ 56. The plaintiff requested the second six-month forbearance. Id. ¶ 57. Whitehead told the plaintiff that an associate would prepare the documents and that the plaintiff should receive them by October 18, 2013. Id. ¶¶ 57-58. This was the last time the plaintiff interacted with Whitehead, and the plaintiff never received the promised documents. Id. ¶ 59.

         On October 23, 2013, the plaintiff reached out to Fannie Mae. Id. ¶¶ 60, 64. The supervisor he spoke with “informed [the plaintiff] that there was . . . no notation in the system that showed anyone at [BANA] had submitted a SFA extension request, ” which is required for any forbearance over six months. Id. ¶ 64. The supervisor noted her concern that nothing had been submitted, as “it was highly unlikely that [Fannie Mae] would receive [BANA's] extension request, review it, and approve it within the eight (8) days remaining in the month.” Id. ¶ 65.

         C. Transfer to Ditech and Subsequent Events

         On October 21, 2013, the plaintiff received a letter, dated October 16, 2013, that his loan was past due and would be “forwarded for foreclosure proceeding if the [plaintiff] did not immediately cure the outstanding debt.” Id. ¶ 69. The next day, October 22, 2013, the plaintiff received a notice that the servicing of his loan had been transferred to Ditech. Id. ΒΆ 70. This notice ...


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